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Select Committee on a National Integrity Commission
05/07/2017
Adequacy of the Australian government's framework for addressing corruption and misconduct

GRIFFIN, Mr Michael, AM, Integrity Commissioner, Australian Commission for Law Enforcement Integrity

MARSHALL, Ms Sarah, Executive Director, Operations, Australian Commission for Law Enforcement Integrity

McKAY, Ms Penny, General Counsel, Australian Commission for Law Enforcement Integrity

CHAIR: I welcome representatives from the Australian Commission for Law Enforcement Integrity. Thank you for talking with us today. The committee has received your submission as submission No. 12. I ask you to make a brief opening statement, and then we will move to questions on that and your submission.

Mr Griffin : I am the Integrity Commissioner and the agency head of the Australian Commission for Law Enforcement Integrity. ACLEI's written submission gives an outline of my statutory role and powers as Integrity Commissioner. The focus of the Australian Commission for Law Enforcement Integrity is to detect, investigate, disrupt and deter corruption in several of the main Australian government agencies that have law enforcement functions. As you will be aware, law enforcement has historically been a particular problem area for corruption control in Australia and around the world.

The agencies in ACLEI's jurisdiction include the Australian Federal Police; the Australian Criminal Intelligence Commission; AUSTRAC, which is the Australian Transaction Reports and Analysis Centre, which is Australia's anti-money-laundering agency. The jurisdiction also includes the Department of Immigration and Border Protection, including the Australian Border Force. It also includes around 1,000 staff of the Department of Agriculture and Water Resources who have a biosecurity role in screening sea cargo.

As Integrity Commissioner, my investigations may result in disciplinary action, criminal prosecutions, recommendations for changes to the law or to agency policy, or, when the evidence points that way, I may exonerate a person whose integrity has been called into question. To date, ACLEI investigations have resulted in 33 successful prosecutions, including 17 civilian co-offenders. There are another eight prosecutions in progress at the moment. ACLEI's investigations also generate information that is of use to government agencies, such as actionable intelligence about specific criminal activity, contemporary insights into changes in crime and corruption methods, as well as targeted analysis of system vulnerabilities and target hardening opportunities for the agencies.

In reading the testimony of other witnesses before this inquiry, I have been particularly interested in the evidence of Professor A J Brown. Professor Brown's narrative about needing to first understand the risk or harm to be addressed, and then designing the solution accordingly, is in my view a very important insight.

You will see that ACLEI's jurisdiction is directed towards an area of particularly high risk for government administration—namely, those Commonwealth agencies with law enforcement functions that are likely to be the targets of compromise by criminal entities. ACLEI's jurisdiction started 10 years ago, in December 2006, with the Australian Federal Police and the Australian Crime Commission. It has been extended on several occasions since then, each time in response to changes in the factors that drive corruption risk, such as organised criminal activity or the changing roles of the agencies. ACLEI's jurisdiction was first extended in January 2011 to include the Australian Customs Service. It was extended again from July 2013 to include AUSTRAC and some of the biosecurity aspects of the Department of Agriculture, and again, more recently, from 1 July 2015, to include all aspects of the Department of Immigration and Border Protection. That includes the Australian Border Force.

As you may know, the Parliamentary Joint Committee on ACLEI has recommended to government that the balance of the Department of Agriculture and Water Resources be brought into jurisdiction—that is around 4,000 more staff—and that consideration also be given to including the staff of the Australian Taxation Office. Both of those propositions are presently under consideration by government and are not matters for me to comment on.

I note that your committee has also been interested in key questions about the design of anticorruption agencies in Australia and particularly the issue of public hearings. I believe the strength of ACLEI's governing legislation is that the Integrity Commissioner has the discretion to conduct hearings in private. This arrangement is necessary for the types of operations that we typically undertake. As you have heard from other agencies, investigations, particularly in the corruption area, can take considerable time, because you need to unravel deeply concealed corrupt conduct. Now, we do not want to alert suspects or persons of interest too early in that process.

Similarly, taking evidence in private rather than in public is less likely to have an adverse impact on any criminal prosecutions that may result from the investigation. Nevertheless, ACLEI's legislation does provide for the commissioner to hold hearings in public, whether as part of an investigation or as part of a public inquiry requested by the minister. In either case, the act obliges me to balance public interest factors concerning taking evidence in public, including any unfair prejudice to the person or persons giving evidence. Although ACLEI has not in its 10 years held a public hearing, I can see that it is possible that ACLEI might do so in the future—for instance, to encourage other witnesses to come forward or as another means to promote accountability. As I said, it is something the legislation provides for.

CHAIR: Thank you very much, Mr Griffin. Looking at the current scope for ACLEI and with the description that you have just provided us with, essentially focusing on high-risk areas, would you foresee further evolution in that task? We are moving away from law enforcement now potentially to Australian Taxation Office, broader Department of Agriculture. Do you see that as an evolution?

Mr Griffin : With respect, you raise an interesting point. If you look at the title of the act and the title of the agency, law enforcement is front and centre there. But that definition has expanded over the 10 years in the three iterations that I just discussed, and I think it is reasonable to conclude that it has moved from the coalface of policing—that is, the AFP and the Crime Commission—into other areas of law enforcement that are equally as important and potentially more susceptible to corruption. That is, these are not people who are trained law enforcement officials in the sense of a police officer and therefore perhaps not as well trained in dealing with the attentions of organised crime and others to corrupt them.

CHAIR: Well, it is interesting, for example, thinking about the Australian Taxation Office. It does not necessarily easily fit into my notion of a law enforcement agency. It may well be that you are evolving past the scope of the original act.

Mr Griffin : It certainly could. I think that interpretation is available. I know that the Fraud and Anticorruption Centre, which you will be familiar with, has a whole range of other agencies as part of it, seconded to it, who also fall under that description that you have just referred to as not necessarily what one would immediately think of as law enforcement agencies. Nevertheless, they have at their disposal, in the normal course of their work, information that is of critical importance to government but also extraordinarily valuable in many cases to organised crime.

CHAIR: Yes, which is where you highlight the point of identifying high-risk areas and expanding scope to manage those.

Mr Griffin : Yes.

CHAIR: For example, you may have seen the ombudsman's submission and appearance before us where the suggestion there is that, to move forward at a federal level in managing corruption and integrity measures, it may well be best to identify a lead agency, so to speak—lead could be viewed as capturing high risk—and place the emphasis in that area. This would lend support to the argument that has been put, at least by some to this committee, which is expanding the scope, resourcing and operations of ACLEI is the preferable way to move towards a national integrity commission.

Mr Griffin : As is often the case, looking at the future can be assisted by looking at the past—looking backwards. That 10-year revolution of ACLEI, as it has moved from the strict policing agencies through these other iterations, falls, I think, under the description that you are outlining as we have moved along that continuum of what is law enforcement and where is the higher corruption risk.

Attempting to address everything in one go is, in my view, not a proper use of resources. Resources have to be addressed at a point of most vulnerability—that is, the risks. That is why I think Professor Brown's insight is quite important. If one was conducting—and I will revert to type here—a military operation, one would look at the threats and where to assemble the resources to deal with those threats. That involves an intelligence assessment of your operational environment and then marshalling your resources.

Taking the view that the entire group of agencies are all vulnerable and 'We'll just throw resources at' is not the most efficient way to do that, as it is not in any other type of operational environment. So one needs to identify what it is that you want to protect and where the highest risk point or risk points are—and there are many of them. Having identified those, then address where the vulnerabilities are that will impact on those and then bring your resources to bear on those.

CHAIR: We have been addressing in a sense two different types of risks. The first risk is that ACLEI would be addressing some of those high-risk areas, highest areas of risk in terms of likely corrupt behaviour. The other risk in part we are addressing is public confidence. That public confidence extends beyond public official potential corruption and includes parliamentary political integrity as well. One of the concerns that seems front and centre is the public perception that there is a high level of Commonwealth level corruption and a failure to address a public understanding of how those issues are managed and resolved. The multiagency approach does not seem to be adding to the coherence in that part.

Mr Griffin : Yes, I see.

CHAIR: So in one sense you are saying, yes, applying the military suggestion of how to proceed. I certainly see that works in terms of the risk of high-level corruption but how to address confidence in our political system, more generally, is one of the other challenges facing this committee. I do not know if you have any insights in that space.

Mr Griffin : What I have observed in the now slightly more than 2½ years in this role is a degree of cultural shift in the community and public sector, a heightened awareness of corruption and also a willingness to call it out where it is observed. In the agencies for which I have responsibility and the jurisdiction, what we have seen in that time is a very pronounced emphasis on integrity and corruption, and internal measures to deal with that. That is partly the reason our workload has increased—because the awareness in those agencies of the risk of corruption, the emphasis from strong leadership about calling it out and, also, to a degree, a shift in—I think it is not unreasonable to use the term—what could, once upon a time, have been considered 'you do not dob in your mates in the workplace'. That is the cultural shift that I am observing. We are now seeing an understanding on the part of the people in our jurisdiction that it is not dobbing on your mates but actually protecting the public's interest and protecting the agency's interest. It is a form of self-defence. I think that accounts for the increase in the material that is coming to us, because the agencies are maturing themselves and are having that leadership and that cultural approach. I think that is reflected in, as you said, the public reaction to corruption as it is perceived. So the public has moved in that way. I think it is happening across the board.

From my perspective as the Integrity Commissioner, the inflow of work that we are receiving reflects a healthy agency environment where there is a willingness to report corruption.

CHAIR: Of course, the failure of any activity is not necessarily a sign that nothing is happening, is it?

Mr Griffin : That is right. In fact, for those who say there is no corruption, we would say, 'Well, you better have another look.'

Senator KAKOSCHKE-MOORE: Thank you, Mr Griffin. Your opening statement was incredibly helpful. I just want to go to two areas, in particular, that you touched on. The first goes to one of your functions—the power to exonerate a person. Can you just tell me a bit more about how that particular function works and if you have, indeed, used that particular power in your role now?

Mr Griffin : Yes, I have—on several occasions this year, in fact. It is another healthy aspect that I was just describing—that people are prepared to make complaints. We give them a very thorough assessment process which involves a preliminary intelligence review. As you may be aware, Senator, there is a propensity for hearsay to develop its own momentum. On occasion, we will find that when we pursue our inquiries the hearsay message has been corrupted along the way itself. So we are able to find that the person—there is no reasonable cause to suspect that they have done what they are alleged to have done. So I can report that to the agency head with the evidence that supports it, and that provides considerable comfort to the agency—that they can exonerate the individual and also be comfortable that people have felt confident enough to be able to make their complaint. Because my act provides certain protections for them, they do not feel compromised in the process.

Senator KAKOSCHKE-MOORE: So the process of exoneration is you communicating back to the agency in which the conduct has been complained of or brought to your attention, and you would write back to say, 'We've investigated, and there was no cause for concern. The person has been involved in no wrongdoing'—essentially?

Mr Griffin : Indeed. If I have actually engaged the full suite of powers available to me and expended funds on behalf of the Commonwealth in that process, then I will make a report to the minister under section 54. So there is an accountability. Even though it is an exoneration rather than someone getting into trouble, it is, again, comfort to government and to other agencies that money is being spent, but it is producing a result—and, in some cases, exoneration.

Senator KAKOSCHKE-MOORE: I had not been aware that there was that particular function. I am not too sure if it exists in any other state based integrity commission. That takes me to the next point I wanted to ask you more about—that is, public hearings. Within your act, you have a discretion to hold a public or a private hearing, and there are factors that you would weigh up in making that ultimate decision. In your 2½ years, there has not been an occasion where you felt it would be in the public interest to hold a public hearing, but that might not be the case in other future matters. Obviously without mentioning any details, could you talk a little around your decision-making process for investigations you have been involved in where you decided it was not in the public interest to hold a public hearing. What were the deciding factors for you then?

Mr Griffin : As you would appreciate, because you have already addressed it, the act contains a range of prescriptive criteria. It is often a balancing exercise. I do this each and every time I conduct a hearing. As at the end of this financial year, I have held 26 hearings.

Senator KAKOSCHKE-MOORE: Private hearings?

Mr Griffin : Yes. On each occasion, there is a rigorous internal process where we will look at the intelligence that is available and we will look at what else is happening in other environments—in the courts, for example, and police investigations. We will cast our net very wide and then I will go to the criteria that are in the act. The first of those is to consider whether or not confidential information will be disclosed. As you would appreciate, that is a very broad brush. It might be commercial in confidence, contractual matters or personal financial circumstances. It might be medical in confidence, it might be psychology in confidence or it might be legal in confidence—the full range of issues that I must address there.

The second limb of that first test is: will there be information that gives rise to the possible commission of an offence, a criminal offence? Again, that has to be a broad consideration because there may be police investigations underway into the same or similar matters. If I were to conduct a public hearing, I might prejudice those police investigations or there may be court proceedings and I would run the risk of prejudicing a fair trial to a person. So the issues surrounding that second limb of the first test are many.

Having addressed the first limb, I then move to consider the unfair prejudice to the persons involved. As you would appreciate, that is a complex consideration as well. The test does not talk about unfairness to an individual; it talks about unfair prejudice to the reputation of a person. There are a number of concepts involved in that phraseology. It is not just a simple unfairness test. You might reflect for a moment on the Victorian matter, the IBAC, where it was decided that a public hearing was necessary even though it affected people's reputations. There were matters of very significant public interest there, I think, for the parents of the children at the schools in Victoria where the money that was supposed to be for the children was going into another place. So there was a weighing up there, and I have to look at similar sorts of questions. That then comes to the final test of the public interest, which is affected by the two that have gone before, really—I have to weigh that up as well—and then, finally, any other relevant information, of which there may be a multitude.

We do that on each and every occasion. We document it. It is a reviewable document. It is a statement of reasons under the Administrative Decisions (Judicial Review) Act, or the Federal Court can review it. It is there.

Senator KAKOSCHKE-MOORE: That was very helpful, thank you. Something that has come up in the course of this inquiry is that ACLEI's profile is relatively low compared to other investigative bodies like an ombudsman or state based ICACs. Could you talk to the committee a little about whether having a low profile was a deliberate decision or whether it has been a result of limited resources to dedicate towards advertising or promoting your services.

Mr Griffin : I am probably going to display my age, and call me old-fashioned, but I do not think it is seemly for me or for my agency to court attention in any way. As a lawyer, one would never engage in discussions about a matter that was in hand. Weighed against that is the public interest in knowing what we do. For that reason, we are required to publish reports, which we do. We have the website. We certainly engage in external education processes with various agencies, and we also engage with the other key players such as the Public Service Commission and the Attorney-General's Department, in sharing the insights that we have into what is going on in that public sector environment. So, again, we balance it, but I take your point that we are relatively low profile.

Senator KAKOSCHKE-MOORE: Thank you.

Senator SMITH: I am not familiar with the parliamentary oversight committee, but in your submission you talk about the parliamentary committee providing oversight of the annual report and the parliamentary committee having oversight of special reports, and they are different from the investigation reports.

Mr Griffin : Yes.

Senator SMITH: And the investigation reports are all made public unless they are required to be suppressed for operational reasons. Is that the only reason an investigation report would be suppressed?

Mr Griffin : Yes, or it will be modified where I consider it necessary to protect individuals.

Senator SMITH: And then it would be published?

Mr Griffin : Correct.

Senator SMITH: Page 8 of the submission talks about the work that you have been doing with states and also the preventative strategies that your office has been doing to assist in preventing corruption. What is the level of enthusiasm for agencies to seek your assistance and cooperation in testing the sensitivity of agencies to possible corruption activities?

Mr Griffin : With respect, that is a really interesting point. If I might give a little history—

Senator SMITH: Yes, please.

Mr Griffin : about a year after I took up the job and I had had the opportunity to look at the environment, I came to the conclusion that our corruption prevention process needed to be operationalised—forgive the clumsy term. We took it out of where it existed in the secretariat side of the house and we brought those folks who have specialist skills into the operation branch so that they are there right from the beginning. They are seeing and hearing everything about the risks and the vulnerabilities and we can provide real-time vulnerability assessments to those agencies. That has been very well received.

Senator SMITH: So it is an active as opposed to a passive function that you provide to agencies outside.

Mr Griffin : Precisely.

Senator SMITH: You spoke about a degree of cultural change. Were you saying that the cultural change is very important and that the cultural change has actually been successful as well? We hear a lot about culture—and I have to be honest with you: I am always a little suspicious when I hear the 'culture' word. But, based on your evidence, it is very important and the culture has been changing, and that has been necessary in understanding why we have a higher level of awareness or reporting around corruption activities.

Mr Griffin : With respect, you have accurately described my perception.

Senator SMITH: So it could well be then that in the future we see a decrease in the reporting of corruption activities, not because people have become short-sighted or naive but because the culture has continued to improve.

Mr Griffin : Indeed.

CHAIR: Mr Griffin, can I thank you for your submission. It has been very helpful and very comprehensive, with the list of all of the investigation reports as well—in terms of the committee having an understanding of the types of cases that are being addressed. Sorry, I had in my mind a question.

Senator SMITH: If I might, Chair: I do not want to inadvertently interfere with the work of the parliamentary committee, but could you share with us any observations you might have for the improvement of the conduct and operation of the parliamentary oversight committee? To put it another way, have you recently spoken with them or reported to them ideas for improvement?

Mr Griffin : Indeed, I have had very good engagement with the committee, so much so that the new members of the committee invited me to travel with them as they went to a number of centres around the country and were briefed on the corruption risk issues in those environments. That provided the committee the opportunity to engage with me and with my senior officers. I think that was a very fruitful exercise because it also gave me the benefit first-hand of understanding what it was that was exercising the minds of the members of the committee. So I think it is a very valuable activity. I am not sure if we are the only agency that is the single client of a particular parliamentary joint committee, but it is a very powerful process. We have a good engagement and I will have the opportunity to brief the members of the committee regularly during the course of the year—or that has been the case to date.

Senator SMITH: Okay. Thank you, Chair.

CHAIR: Thank you, Senator Smith, that helped me recall what I had in mind. If we think about ACLEI as the anticorruption agency dealing with higher risk areas, could it make sense for the oversight committee to have a broader purview, to the degree that they are recommending other areas that should perhaps be regarded as high risk and coming into the fold of ACLEI's work?

Mr Griffin : Of the parliamentary joint committee?

CHAIR: Yes.

Mr Griffin : As I understand it, from the 2½ years of my role, members of the committee have been cross-appointed with other committees—I am thinking in particular of the Parliamentary Joint Committee on Law Enforcement. I think there is some value in what those committee members observe in that other environment to inform their scrutiny of my processes.

CHAIR: If we think of yourselves and the AFP Fraud and Anti-Corruption Centre as, sort of, the two of the main areas—ACLEI obviously covering the areas that have been determined to be high risk, the AFP covering a range of other areas, some of which come under other types of oversights, such as our oversight of electoral matters, which would be one area—what came to my mind when you were referring to, for instance, is it the joint committee's recommendation about the ATO that you mentioned earlier or where did that recommendation come from?

Mr Griffin : The parliamentary joint committee recommended that consideration be given to it.

CHAIR: Sure. So it may well be appropriate that the joint parliamentary committee understand better the other types of corruption and integrity issues that are occurring that the AFP would deal with on a lower risk basis but more as a matter of course, in terms of their activities, which then potentially better informs decisions about which areas we decide are higher risk and should come into the field for ACLEI.

Mr Griffin : I would not disagree with that proposition. One point I might make in respect of the Fraud and Anti-Corruption Centre that you have referred to and what we do is that they do not have the Commonwealth's coercive powers. The peace that we bring to the operational environment is those coercive powers. They are strictly policing. That is, they will follow an investigation that complies or will comply with the rules of evidence for a criminal prosecution. Our approach, as the parliament established it, is that we have the full suite of coercive powers so that we can get right to it: where is the corruption? And there may or may not be criminal proceedings that come from that, but there will be a finding about the behaviour, fully informed by the exceptional powers that you referred to before.

CHAIR: And, indeed, that finding might better inform future agency conduct, as opposed to necessarily prosecute an individual.

Mr Griffin : That is correct.

CHAIR: But perhaps a broader process identifying those areas which should attract those coercive powers and that approach could be considered, in terms of the purview of the joint parliamentary committee.

Mr Griffin : It could.

CHAIR: That is very helpful. There is one other matter that has been in the press in the last couple of days. I want to be careful about how I refer to it because I do not want to comment on a live investigation. It has been reported that the head of the Border Force agency has been referred to ACLEI. Today's stories are saying 'allegations relating to Mr Quaedvlieg's relationship with some staff'. As a matter of record, can you indicate what, if any, referral has occurred and what the terms of it are?

Mr Griffin : It is practice not to address operational matters at all. Indeed, the way the act is structured prevents me from going into any operational matters in this forum.

CHAIR: That is even in terms of what the terms of an actual referral might be, as opposed to the media reporting around it.

Mr Griffin : Correct.

CHAIR: I will explore one other element of it, then, in a different respect. Why would such a matter go to ACLEI, as opposed to the Public Service Commission?

Mr Griffin : Regarding any matters that come to us, I speak in general terms, because it is section 19 of the act. Any information that an agency head or someone else receives that raises a corruption issue must be referred to ACLEI. That is a very low bar.

CHAIR: If it is one of those agencies, it must go.

Mr Griffin : It is a very low bar. You will see that it does not say 'reasonable cause'. It does not say 'prima facie'. It says 'must raise'.

CHAIR: What is the definition of 'corruption' in that sense?

Mr Griffin : It is engaging in conduct—and the legislation refers to abuse of power; it refers to perverting or obstructing the course of justice; and it refers to, having regard to the office of an individual, whether or not what they have done amounts to corruption of any other kind. Now, you might say to me, 'What is corruption?' That is a question I asked myself when I took up the job. As is often the case in legislation, as I am sure you are aware, if there is not a definition, then one reverts to the ordinary everyday meaning. Courts, for a long time, have then gone to the Macquarie and looked at the definition, and so I did that. And if you look at the definition of 'corrupt' in Macquarie, you will see 'dishonest or lacking in integrity'. If you go to the definition of 'integrity', it is broader. It does not mention 'corrupt' or 'corruption' at all. It talks about 'soundness of moral principle and character'. It talks about the wholeness of the being. So, somewhere in that, I have to consider whether or not a matter that comes before me raises a corruption issue. That is something that occupies a considerable amount of the resourcing—as I mentioned to you earlier about the intelligence analysis and looking at this space. But the bar is quite low.

CHAIR: I understand that bar, and those facts are helpful. In reading the media, for instance, on 4 July The Australian reported:

… the probe was believed to be into allegations about a protocol breach surrounding a personal relationship.

And I think there have been some other descriptions talking about personal relationships or relationships with staff. But reading behind that, in many senses, you are actually looking at issues around what is regarded as professional conduct.

Mr Griffin : Correct.

CHAIR: I understand now that that is your job, and good luck with it. From your appearance today, I think I would have every confidence in how you will manage it.

Mr Griffin : Thank you, Chair.